Gujarat High Court
Shahidabibi Dilavarkhan Pathan vs State Of Gujarat on 7 November, 2025
NEUTRAL CITATION
R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025
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Reserved On : 30/07/2025
Pronounced On : 07/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 218 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✔
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SHAHIDABIBI DILAVARKHAN PATHAN & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR RAJESH K SHAH(784) for the Applicant(s) No. 1,2
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
UNSERVED EXPIRED (R) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1) Rule. Learned APP waives service of Rule on behalf of the respondent - State.
2) The present revision application has been filed by the applicants, namely applicant Nos. 1 and 2, in connection with an unfortunate incident that took Page 1 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined place in March 2002. This revision application has been preferred by applicant Nos. 1 and 2 against respondent Nos. 2 to 4, who were the original accused, challenging the judgment of acquittal passed by the learned Additional Sessions Judge and 4th Fast Track Court, Nadiad, in Sessions Case No. 258 of 2003. By the judgment dated 17.02.2006, the learned trial court acquitted the original accused Nos. 1 to 3 -- the present respondent nos. 2 to 4 -- for the offences punishable under Sections 143, 147, 148, 302, 307, 332, 436, 337, and 427 read with Section 149 of the Indian Penal Code, as well as under Section 135 of the Bombay Police Act.
3) The sum and substance of the arguments of the learned advocate for the applicants is that the complainant was the P.I. - Mr. Goswami and the preliminary investigation was carried out by Mr. Goswami and thereafter, the investigation was transferred to another police officer and in the charge sheet, there is sufficient and cogent evidence against the respondent Nos. 2 to 4. Further, he has submitted that the learned trial Judge, without considering the deposition of the present applicants, the factum of the incident i.e. PW-17 and PW-10 examined below Exhibit-60 and Exhibit-53 before the learned Sessions Judge. So far as the applicant Page 2 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined No.1 is concerned, she is the wife of the deceased - Dilavarkhan Pathan, who has supported the story of the complainant. Further, some of the witnesses have also supported the case of the prosecution. Without considering the deposition of the witnesses, the learned Sessions Judge has acquitted the accused. Further, he has submitted that the police witnesses who have deposed before the Court have supported the case of the prosecution and from the deposition of the police personnel, it is established by the prosecution that on the fateful day i.e. 29.03.2002, the incident took place, a mob of 1500 to 2000 people came and thereafter, they pelted stones, soda bottles, acid bulbs and also threw thick coarse materials (in vernacular language "kakado"). Further, he has submitted that even the witnesses have been injured and they have deposed before the Court, but the deposition has not been properly evaluated by the learned Sessions Judge, and the learned Sessions Judge has not properly appreciated the deposition of the applicant Nos. 1 and 2 and passed the judgment of acquittal. Further, Dr. Hemang Rameshchandra Shah, who has been examined as PW-21 vide Exhibit-68, has supported the case of the prosecution and this aspect has also not been considered. Hence, considering this, the present revision application is required to be Page 3 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined allowed and the judgment of acquittal passed by the Court is required to be quashed and set aside and the present respondent Nos. 2 and 3 are to be convicted and sentenced.
4) On the other hand, learned APP Ms. Jyoti Bhatt on behalf of the State supported the judgment passed by the learned Sessions Judge and submitted that no interference is required. Learned advocate Mr. Ashish M. Dagli is representing the respondent no.3
- original accused and submitted that the judgment passed by the learned Court below is just and proper and does not require any interference. So far as the respondent no.2 is concerned, he has been duly served but chose not to appear. So far as the respondent no.4 is concerned, the original accused has already been expired during the pendency of this revision application.
5) Considering the judgment passed by the learned Trial Court and considering the arguments advanced by the learned advocates for respective parties and considering the R&P of the learned Trial Court, the following observation has been made:
"The jurisdiction of the Court in such revision petitions are limited by the statute itself, thereby prima facie, the Court has to Page 4 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined look into the issue regarding irregularity or illegality, if any. committed by the trial Court while passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute injustice to the either of the litigant. Therefore, this being the first revision against the order of acquittal, though this Court is empowered to re-appreciate the evidence, to examine that whether appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re-appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be re-appreciated or dealt with, only because of different opinion of the appellate Court. Thereby, the appellate Court has to be careful while re- appreciating the evidence in case of acquittal and decision of acquittal can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re- appreciated so as to convert the decision of acquittal into that of-conviction-of-accused- To-that extent, the Apex Court has categorically stated that in case of acquittal appeal or revision, the accused have got double benefit in their favour viz. (1) a standard rule of criminal jurisprudence that no one should be believed as an accused unless there is proper proof and Page 5 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined evidence against him, and (2) in such cases of acquittal, the judgment of acquittal, which is otherwise confirming either innocence or lack of evidence against such accused. Therefore, respondent before us though they were accused before the trial Court, they are having a clear verdict in their favour by the trial Court that either they are innocent or there is lack of evidence so as to convict them, and therefore, in such cases, the re- appreciation of evidence is to be done with great care and order of acquittal can be interfered only and only if there is absolute and clear evidence without any doubt regarding commission of offence by such respondent. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision."
6) With the background of the above legal position and considering the case of the prosecution before the learned Trial Court is that the present original accused have been charged, as per the case of the prosecution before the learned Trial Court, that on 29.03.2002, between about 00:30 A.M. to 02:00 A.M., at Village Borsad, Taluka and District Anand, in Bhobha Fali area and Haji Tekari & Bhobha Lake Pumping Station area, the present original accused - the present respondent Nos. 2 to 4 - along with another mob persons including of 1500 to 2000 people of Hindu and Muslim religion, after the incident of the Sabarmati Express train took place, Page 6 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined formed an unlawful assembly and were armed with weapons, and they pelted stones against each other and also threw soda bottles, acid bulbs and thick coarse materials, and because of that, witnesses - Safimahammad Malek, Abdulmajid Fakruddin Malek, Soktali Munirali Saiyad, Usmanbhai Abdulbhai Vora, Salim Mahammad Mahammadmiya Malek, Alimkhan Rahematkhan Pathan, and Rafiqmiya Ahemadmiya Malek - were affected, and the houses of the above persons were damaged. Thereafter, they set fire to the houses of the witnesses, and subsequently, one of the persons from the mob threw an acid bottle towards one Mr. Dilavarkhan Pathan, who suffered burn injuries on his body and, during treatment, succumbed to death.
7) Pursuant to that, an FIR came to be given by the P.I. of the Borsad Police Station against the mob of 1500 to 2000 people before the Borsad Police Station for the offences punishable under Sections 143, 147, 148, 302, 307, 332, 436, 337, 427 read with Section 149 of the IPC and Section 135 of the GP Act and the same was registered before the Borsad Police Station vide FIR being C.R. No.56 of 2002. Further, after the investigation has been carried out by the investigating officer, the witness - Mr. Dilavarkhan Pathan has been died during the treatment. Hence, Page 7 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined offence under Section 302 was added and Post Mortum was conducted and subsequently, after the investigation has been completed, the investigating officer has filed the chargesheet against the present respondent nos.2 to 4 against the accused nos.1 to 3.
8) Pursuant to the filing of the chargesheet, the case was committed by the Magistrate to the Sessions Court, and subsequently, the Sessions Court framed charges against the accused persons vide Exhibit-7 for the offences punishable under Sections 143, 147, 148, 302, 307, 332, 436, 337, and 427 read with Section 149 of the IPC, as well as Section 135 of the GP Act. Thereafter, to prove the charges, the prosecution examined 21 witnesses and also relied upon 10 documentary evidence collected during the investigation. It is now required to consider the oral evidence of the witnesses, namely PW-1 - Mr. Alpeshkumar Kishanlal (Exhibit-39), PW-2 - Mr. Dineshkumar Malharibhai (Exhibit-40), PW-3 - Mr. Jaydeepsinh Nathusinh (Exhibit-45), PW-4 - Mr. Bhavanbhai Jivabhai (Exhibit-46), PW-5 - Mr. Kantibhai Ghoghabhai (Exhibit-47), PW-6 - Mr. Rakeshkumar Amrutrai (Exhibit-48), PW-7 - Mr. Maganbhai Dalabhai (Exhibit-49), PW-8 - Mr. Shivprakash Sheshamani (Exhibit-50), PW-9 - Mr. Page 8 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined Dhulabhai Tilabhabhai Dabhi (Exhibit-52), etc. As per the deposition of these witnesses, it emerges that on 29.03.2002, a mob of about 1500 to 2000 people, armed with weapons, had thrown acid bottles and other objects at each other from both communities. During this incident, the Mamlatdar of Borasad was also present. Subsequently, two tear gas shells were fired, and the police also fired in the air. Thereafter, the entire mob was disbursed, and as a result, some people were injured and some houses were damaged. During this occurrence, one person - Dilavarkhan Pathan - sustained injuries and later succumbed to them during treatment. It also emerges that no accused was arrested from the spot. In this regard, the learned Sessions Judge, in paragraph no.17 of his judgment, appreciated the evidence of the police officials, and it is also admitted that, based on these evidences, the role of the original accused nos. 1 to 3 has not been established.
9) It is required to consider the deposition of the other witnesses and as the private persons are concerned, the prosecution has examined PW-10 - Abdulmajid Fakruddin Malek vide Exhibit-53, then another witness PW-11 - Salimmahammad Mahammadmiya Malek vide Exhibit-54 has been examined who has Page 9 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined not supported the case of the prosecution and declared hostile and then, Yusufali Abdulmiya Saiyad vide Exhibit-56, also not supported the prosecution case but also stated that he cannot identify the accused so far as other witness PW-15 - Mr. Safimahammad Sadaruddin Malek examined vide Exhibit-58 has been examined and he has not supported the case of the prosecution and stated that he cannot identify the accused as there was a mob of 1500 to 2000 people and on that day, incident occurred in the night and another PW-16 Rafiqmiyaan Ahemadmiyaan Malek examined vide Exhibit-59 has also not supported the case of the prosecution and lastly, the present petitioner - wife of the deceased - Dilavarkhan Pathan i.e. PW-17 - Sahidabibi Dilavarkhan Pathan has been examined vide Exhibit-60. From her concern, except PW-10 - Abdulmajid Fakruddin Malek and PW-17 - Sahidabibi Dilavarkhan Pathan, no private persons has supported the case of the prosecution, so, in this regard, it is required to consider the deposition of these two witnesses. So far as the deposition of PW- 10 is concerned and as per his deposition, he has stated that on 28.03.2002, at about 12:00 O'clock in the night, the incident of pelting stones and soda bottle was occurred and there was a mob of 1500 to 2000 people and in that mob, Gordhanbhai Fulabhai, Page 10 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined Ishvarbhai Fulabhai, Yogeshbhai Gordhanbhai and peon Chhaganbhai were also present and they were pelting stones and because of that, the house of Safiuddin Sadruddin was burnt and subsequently, he identified the accused and subsequently, he came to know that somebody has thrown acid bottle and Dilavarkhan Pathan was injured and he expired during the treatment. In the cross-examination, he admitted that the incident took place in the mid night and at that time, there was dark and even the street light was not working and it is not possible to see anyone from the distance and he also admitted in the statement recorded by the police that on the next day, he has not given any persons name in the statement and he has stated the name of the accused persons are concerned, he only gave the name on the basis of the assumption. Now, another witness Sahidabibi Dilavarkhan Pathan is concerned, from the deposition, he stated that after the incident took place, somebody has thrown acid bulb to her husband and her husband suffered injury and subsequently, he came home and subsequently, on the next day, during the treatment her husband died. Further, he has submitted that she does not know who have thrown the acid bulb on his husband even she has not answered that she cannot identify the accused persons who are present in the Court at Page 11 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined the relevant point of time, on the date of incident were in the mob or not and so, considering this, now, it is required to consider the findings recorded by the learned Sessions Court, as in his judgment, more particularly, in paragraph no.15, specifically held that looking to the deposition of the witness and then the police officials, there is no evidence has come forward that the original accused nos.1 to 3 are involved in the offence and wife of the deceased who has been examined i.e. Sahidabibi Dilavarkhan Pathan is concerned, She has no personal knowledge regarding the incident so far as the question of death of Dilavarkhan pathan is concerned, no witness has been deposed that the present accused nos.1 to 3 have thrown the acid bulb and they are present in the mob of 1500 to 2000 people. So, no evidence has been coming forward to connect the accused nos.1 to 3 with the offence. Further, learned Trial Court has also appreciated and evaluated the evidence of the police official and learned trial Court after considering the evidence, has rightly come to the conclusion that looking to the oral evidence, nothing emerges from the oral evidence that any witness has seen the original accused nos.1 to 3 in the mob and whether they are armed with any weapon or not, so, they are not the member of any unlawful assembly and Page 12 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined presence in the mob is also not established. So far as the learned Sessions Judge has rightly come to the conclusion as there is no evidence has been coming forward that the original accused nos.1 to 3 are the members of the unlawful assembly and they have damaged the properties of the witness and they have thrown thick coarce or acid bulb and because of that, the witness - Dilavarkhan Pathan has been suffered an injury and subsequently, he died. So, learned Sessions Judge rightly acquitted the accused persons from the offence as prosecution has miserably failed to prove the charge against the accused persons and considering this, as the revision jurisdiction under Sections 397 and 401 of the Cr.P.C is limited and when it arising from the judgment of acquittal, it is not permissible for the High Court to analyze deposition of the witness and to re-appreciate the whole evidence. I do not know any error of law has been committed by the learned Sessions Court and I do not find the judgment passed by the learned Sessions Court is perverse.
10) In view of the discussion herein-above facts, evidence of law point, I do not find any error of law or irregularity or illegality or perverseness in the appreciation of evidence and the decision taken by the trial Court which does not permit this Court to Page 13 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025 NEUTRAL CITATION R/CR.RA/218/2008 CAV JUDGMENT DATED: 07/11/2025 undefined come to any different conclusion. Hence, there is no substance in the present revision reserves to be dismissed. The present revision application is hereby rejected. The judgment passed in sessions case no.258 of 2003 by Fast Track Court No.4, Nadiad dated 27.02.2006 acquitting the original accused nos.1 to 3 is hereby confirmed. Rule is discharged.
(L. S. PIRZADA, J) JCP Page 14 of 14 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Fri Nov 07 2025 Downloaded on : Sat Nov 08 03:28:13 IST 2025